Claims denied without C&P Examination

[lotzaspotz]

My husband filed claims in late Jun 2016 for GERD and ED, secondary to meds he's been taking a very long time for service connected disabilities  (pituitary tumor residuals, HTN included in the pituitary residual award, adrenal disorder, and IHD blood thinners).  With his claims, we sent records from his treating non-VA doctors, a list of all his prescriptions, as well as where they're being filled (most from the VAMC here) and Rx number, plus documentation from the online sites for each specific drug that lists the possible side effects.  We found out today via Ebenefits that both were denied and this was done without a C&P exam.  We haven't received the decision yet, so once we get it, then file the NOD, I'll then see about getting IMO's from those same doctors once I can get a look at an SOC.

I'm thinking they screwed up in two ways:  assuming the conditions were strictly age related, and allowing a non-healthcare professional (layperson who was a rater) to evaluate on paper medical conditions.  38 CFR is supposed to prevent either from happening.

This is the first time in 23 years that he's ever been denied without first undergoing a C&P examination.  Have any of you had this happen with your initial claim(s)?  

Edited September 18, 2016 by lotzaspotz

[Gastone]

Buck, just for clarification purposes, your MH clinicians are directed by the VA  DBQ Reg, not to complete a PTSD DBQ. The VA doesn't want the Vet getting Pi$$ed off at the Treating Psychiatrist/Psychologist PhD if the DBQ doesn't comport with how the Vet thinks.

When you ask your VA MH Clinician for a PTSD DBQ, their supposed to hand it off to another MH Dept Dr to complete. Supposed to and actually doing it can be a chellenge.

I have to believe that most Vet's just take the "No can do," from their MH Dr, and go on about their business.

The OLD Squeaky Wheel, gets the Grease, should come into play. I'd take a copy of the DBQ Reg into the MH Dept and "VERY Calmly," ask to see the MH Dept MFIC. Don't get hostile, you don't want them calling the VA Police.

When presented with the Actual VA DBQ Reg, most Dept heads cave. They'll still refuse to complete the DBQ's for other Vets, but they'll tell you they are making an accommodation for you. If they tell you it's your VMC Policy, tell him/her you want a copy of the VMC Directive overriding the VA DBQ Reg.

That's worked for me, give it a try.

Semper Fi

[Navy4life]

34 minutes ago, lotzaspotz said:

Right, it's the decision letter we're waiting for, then we'll file the NOD and wait for the SOC.  My husband (he's 67) was granted SC for sleep apnea secondary to meds taken for service connected conditions, prior to the existence of DBQ's in 2007.  We provided the same type of evidence, that is, a prescription list, clinical evidence of secondary effects of those meds that included sleep apnea, with formal diagnosis as we did this time, and there was no C&P performed prior to the grant.  I know times have changed and we didn't expect as smooth a process as he went through back then, but we at least expected a C&P.  As I said, the conditions for which he's been prescribed all these meds are service connected (in lieu of occurring while active duty) - the first part of the Caluza triangle.  We have sent doctors records that he has been diagnosed with conditions that require ongoing treatment - the second leg of the triangle.  We have sent evidence of a clinical relationship between these meds and their side effects - the conditions for which he is being treated - the third leg of the triangle.  

Once I get the paperwork, that will tell me a lot more and in the meantime, I'll find out if his doctors are willing to sign DBQ's or render IMO's.  It will be interesting to see if his age is going to be cited in the rationale for denial without ever having been personally examined.  38 CFR subsection 4.19 states age cannot be considered as a factor in evaluating service connected disability (except for purposes of pension), and 3.159 states that laypersons cannot render medical conclusions.  As often as the VA reminds disabled veterans of that fact, it also applies to VA raters who have no medical background or credentials.  

Thanks, everybody!

Lotz;

Once you get the decision letter post it here, redacting personal information and we can help you as best we can.  I would suggest that once you have that and the NOD needs to be filled out that you request a DRO hearing in person as well as you request C&P exams for the contentions in question.

As you stated, above per 3.159 a DRO/Rater/VSO can not refute a medical opinion w/o reconciling with another medical opinion.  This happened to me just recently which is why I emailed McDonald and my Congressman and now I am happy to say (my thread is on this site about this) that I am not only getting the denial overturned, I am getting all three contentions rated!  The DRO can not refute a medical opinion and in the SOC he clearly stated the rationale did not support my case, however, he did not refute it with another medical opinion.  The two Nexus letters I provided were two of the best written by my VA Podiatrist and when I got a new DRO assigned to my claims that was the first thing she told me.  Now I am pending a C&P exam on the 26th to properly rate the contentions.

[lotzaspotz]

Yes, I read your previous post, Navy!  Good for you, and that's exactly what I'll do. It's been our past experience that asking for a DRO review was merely postponing the inevitable Board appeal.  However, all we're asking for at this point while we get more evidence together is a C&P exam.  I think a DRO might grant that, at the very least.

[lotzaspotz]

Just a postscript that I mentioned my husband's sleep apnea grant because it was an example of a disability for which you'd never find evidence in his service medical records.  He medically retired with over 20 years served in 1993.  Sleep apnea was not clinically recognized as a disability back then, so it would not have been diagnosed or treated before 1993 (at least by the military).  This is similar to the recent onset of GERD and ED resulting from meds for SC disabilities, that would similarly not be found in active duty medical records.  Granted, although evidence in active duty records would make the claim so much easier to defend, it's not a deal killer if it's not there.